No. 10-70288
________________________________________________
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
________________________________________________
MARTIN FERNANDEZ UNZUETA,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
___________________________________________
ON PETITION FOR REVIEW FROM THE
BOARD OF IMMIGRATION APPEALS
BRIEF OF NATIONAL IMMIGRATION PROJECT OF THE NATIONAL
LAWYERS GUILD AS AMICUS CURAIE IN SUPPORT OF PETITIONER
Trina Realmuto
Khaled Alrabe, Legal Intern
National Immigration Project
of the National Lawyers Guild
14 Beacon Street, Suite 602
Boston, MA 02108
(617) 227-9727 ext. 8
[email protected]
CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, I, Trina Realmuto, attorney
for amicus curiae, the National Immigration Project of the National Lawyers
Guild, state that:
The National Immigration Project of the National Lawyers Guild is a non-profit
organization which does not have any parent corporations or issue stock and
consequently there exists no publicly held corporation which owns 10% or more of
its stock; and
/s/ Trina Realmuto
Trina Realmuto
National Immigration Project of the
National Lawyers Guild
14 Beacon Street, Suite 602
Boston, MA 02108
(617) 227-9727 ext. 8
[email protected]
Dated: December 15, 2014
ii
TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENT……………………………………ii
I.
INTRODUCTION…………………………………………………………...1
II.
STATEMENT OF INTEREST……………………………………………...3
III.
ARGUMENT
THE BOARD ERRED IN CONCLUDING THAT PETITIONER’S 2000
CONVICTION WAS A PARTICULARLY SERIOUS CRIME AND,
THUS, ERRED IN DENYING HIM AN OPPORTUNITY TO APPLY
FOR WITHHOLDING OF REMOVAL…………………………………….4
A.
The Court Should Interpret the Term “Particularly Serious Crime” in
8 U.S.C. § 1231(b)(3)(B)(ii) to Encompass Only Exceptionally Grave
Offenses, Not Common Offenses Such as Driving under the
Influence. ……………………………………………………………..4
1.
The term “particularly serious crime” must be read to refer only
to offenses that are far more severe than even serious crimes…4
2.
That Congress adopted verbatim the term “particularly serious
crime” from the 1951 Refugee Convention and 1967 Protocol
further evidences its intent to encompass only exceptionally
grave crimes……………………………………………………9
3.
The rule of lenity supports limiting the definition of
“particularly serious crime” to exceptionally grave crimes…..12
B.
This Court Should Adopt a Presumption that A Crime, Like DUI,
that Does Not Involve a Culpable Mental State is Not a Particularly
Serious Crime……………………………………………………….18
C.
Congress Intended § 1231(b)(3)(B)(ii) to Require an Independent
Finding of Dangerousness ………………………………………….16
1.
Contrary to Board precedent, the plain language of 8 U.S.C.
§ 1231(b)(3)(B)(ii) requires an independent finding of
dangerousness. ………………………………………………16
iii
III.
2.
If having a particularly serious crime conviction and being a
danger to the community were synonymous, it would render
superfluous the phrase “is a danger to the community of the
United States”………………………………………………18
3.
Congress is presumed to have amended 8 U.S.C. §
1231(b)(3)(B) knowing that the BIA historically required an
individualized assessment of dangerousness in making
particularly serious crime determinations……………………18
4.
Requiring a separate finding of dangerousness is the only way
to reconcile § 1231(b)(3)(B) with U.S. treaty obligations under
international law……………………………………………..19
5.
Any lingering ambiguities must be resolved in Petitioner’s
favor ……………………………………................................21
6.
Ramirez-Ramos is not applicable or, at the very least, is not
binding on this Court…………………………………………21
CONCLUSION.……………………………………………………………26
CERTIFICATE OF COMPLIANCE …………………………………………….27
CERTIFICATE OF SERVICE……………………………………………………28
iv
TABLE OF AUTHORITIES
Page
Cases
Ahmetovic v. INS, 62 F.3d 48 (2d Cir. 1995)……………………………...17, 18, 25
Air France v. Saks, 470 U.S. 392 (1985)………………………………………….20
Alphonsus v. Holder, 705 F. 3d 1031 (9th Cir. 2013)…………………….……5, 10
Anaya-Ortiz v. Holder, 594 F.3d 673 (9th Cir. 2010)……………………...…14, 15
Ariz. Cattle Growers' Ass'n v. U.S. Fish and Wildlife, 273 F.3d 1229 (9th Cir.
2001)…………………………………………………………………….……7
Astoria Federal Savings & Loan Ass’n v. Solimno, 501 U.S. 104 (1991)………2, 8
Begay v. United States, 553 U.S. 137 (2008)……………………………………8, 9
Blandino-Medina v. Holder, 712 F.3d 1338 (9th Cir. 2013) …………………… 13
Brecht v. Abrahamson, 507 U.S. 619 (1993)………………………………6, 15, 24
Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102
(1980) …………………………………………………………………………16
Coyt v. Holder, 593 F.3d 902 (9th Cir. 2013)……………………………………..7
Delgado v. Holder, 648 F.3d 1095 (9th Cir. 2011) (en banc)……...5, 14, 15, 16, 22
Delgado v. Holder, 563 F.3d 863, 882 (9th Cir. 2009), withdrawn by Delgado v.
Holder, 621 F.3d 957 (9th Cir. 2010)…………………….............................6
Duncan v. Walker, 533 U.S. 167 (2001)……………………………………...18, 25
Goodyear Atomic Corporation v. Miller, 486 U.S. 174 (1988)………………11, 19
INS v. Aguirre-Aguirre, 526 U.S. 415 (1999)…………………………….2, 5, 6, 10
INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)………………………...9, 10, 12, 21
Lara-Cazares v. Gonzales, 408 F.3d 1217 (9th Cir. 2005)…………………...12, 21
Leocal v. Ashcroft, 43 U.S. 1 (2004)………………………………………….…..12
Lorillard v. Pons, 434 U.S. 575 (1978)………………………………………...…11
Mahini v. INS, 779 F.2d 1419 (9th Cir. 1986)……………………………………23
v
Matter of Carballe, 19 I&N Dec. 357 (BIA 1986)……………………..…16, 23, 24
Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982)……………………..……19, 24
Matter of G-S-S-, 26 I&N Dec. 339 (BIA 2014)…………………………….……14
Matter of Juarez, 19 I&N Dec. 664 (BIA 1988)………………………………….14
Matter of K-, 20 I&N Dec. 418 (BIA 1991)………………………………………16
Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007)…………………………….16, 24
Matter of Q-T-M-T-, 21 I&N Dec. 639 (BIA 1996)………………………………16
Matter of S-S-, 22 I&N Dec. 458 (BIA 1999)………………………………...19, 24
Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc)…………………….....25
Molzof v. United States, 502 U.S. 301 (1992)…………………………………….11
Monessen Southwestern Ry. Co. v. Morgan, 486 U.S. 330 (1988)……………….19
Morissette v. U.S., 342 U.S. 246 (1952)…………………………..........2, 13, 14, 16
N-A-M- v. Holder, 587 F.3d 1052 (10th Cir. 2009)………………………...…17, 20
Negusie v. Holder, 555 U.S. 511 (2009)……………………………………...19, 21
Northcross v. Board of Ed. of Memphis City Schools, 412 U.S. 427 (1973)………7
Padilla v. Kentucky, 559 U.S. 356 (2010)……………………………………...2, 15
Ramirez-Ramos v. INS, 814 F.2d 1394 (9th Cir. 1987)……………3, 17, 21, 22, 23
Reno v. Flores, 507 U.S 292 (1993)………………………………………………13
Rojas v. AG of the United States, 728 F.3d 203(3d Cir. 2013) (en banc)…………26
Staples v. United States, 511 U.S. 600 (1994)……………………………...2, 15, 16
TRW Inc.v. Andrews, 534 U.S. 19 (2001). ……………………………………18, 25
United States v. Nordic Village, Inc., 503 U.S. 30 (1992)………………………..18
United States v. X-Citement Video, Inc., 513 U.S. 64 (1993)………………2, 14, 16
Webster v. Fall, 266 U.S. 507(1925)………………………………………...…6, 15
Federal Statutes
8 U.S.C. § 1101(h)………………………………………………………2, 5, 6, 7, 8
vi
8 U.S.C. § 1182(a)(2)(E)………………………………………………………….6
8 U.S.C. § 1231(b)(3)(B) ..................................................................................passim
8 U.S.C. § 1231(b)(3)(B)(ii) .............................................................................passim
8 U.S.C. § 1253(h)(2) (1987)……………………………………………………..22
8 U.S.C. § 1253(h)(2)(B) (1980)…………………………………………10, 11, 24
8 U.S.C. § 1253(h)(2)(B) (1995) .............................................................................. 5
8 U.S.C. § 16……………………………………………………………………13
18 U.S.C. § 924(e)(2)(A)……………………………………………………...2, 6, 8
18 U.S.C. § 3559(c)(2)(F)(ii)……………………………………………….2, 5, 6, 8
Anti-Terrorism and Effective Death Penalty Act, Pub. L. No. 104-132,
§ 413(f), 110 Stat. 1214 (April 24, 1996)..……………………………..18, 22
Illegal Immigration Reform and Immigrant Responsibility Act of 1996,
Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996)...……………….18, 23
Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (1990)……….....22
Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (1980)…………………... 9
Federal Rules
Federal Rule of Appellate Procedure 29(b)………………………………………...1
Federal Rule of Appellate Procedure 29(c)(5)……………………………………..1
Federal Rule of Appellate Procedure 35 Advisory Committee’s Note…………...26
Miscellaneous
Atle Grahl-Madsen, Commentary on the Refugee Convention, Division of
International Protection of the United Nations High Commissioner for Refugees
(1963)……………………………………………………………………………..10
H.R Rep. No 96-781, 20 (1979) (Conf. Rep.)…………………………………….12
vii
In re Baias & Minister for Immigration, Local Government & Ethnic Affairs,
(1996) 43 A.L.D. 284 (Australia)………… ……………………………………...20
Dan Kesselbrenner & Lory Rosenberg, Immigration Law & Crimes (2013 ed.)……..8
Protocol Relating to the Status of Refugees, Jan. 31, 1967, art. I, 19 U.S.T. 6223,
606 U.N.T.S. 267(1967)………………………………………………………..9, 20
Pushpanathan v. Minister of Citizenship and Immigration, [1998] 1 S.C.R. 982,
¶ 12 (Canada) ………………………………………………………………….…20
R v. Secretary of State for Home Department, [2006] EWHC 3513 (Eng. Q.B.
2006) (United Kingdom)………………………………………………………….20
UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status
under the 1951 Convention and the 1967 Protocol relating to the Status of
Refugees (1992)…………………………………………………………………10
United Nations Convention Relating to the Status of Refugees, 189 U.N.T.S. 150
(July 28, 1951)…………………………………………………………………9, 20
viii
I.
INTRODUCTION AND STATEMENT OF INTEREST1
The National Immigration Project of the National Lawyers Guild (National
Immigration Project) proffers this brief to address the definition and application by
the Board of Immigration Appeals (BIA or Board) of the term “particularly serious
crimes” in 8 U.S.C. § 1231(b)(3)(B). See Fed. R. App. Proc. 29(b). Subsection (ii)
of 8 U.S.C. § 1231(b)(3)(B) authorizes the Attorney General to exclude from
eligibility for withholding of removal any individual who “having been convicted
by a final judgment of a particularly serious crime is a danger to the community.”
At issue in this case is whether Petitioner’s Texas driving while intoxicated
offense, like other driving under the influence offenses (DUIs), constitutes a
“particular serious crime” which would bar him from applying for withholding of
removal.
Amicus urges the Court to find that DUIs are not “particularly serious
crimes” within the meaning of § 1231(b)(3)(B)(ii) and that, therefore, individuals
facing a likelihood of persecution may apply for withholding notwithstanding a
DUI conviction. Amicus submits that the Court should find that the term
“particularly serious crime” covers only exceptionally grave offenses, not offenses,
1
Amicus states pursuant to Fed. R. App. P. 29(c)(5) that no party’s counsel
authored the brief in whole or in part; that no party or party’s counsel contributed
money that was intended to fund preparing or submitting the brief; and that no
person other than the amicus curiae, its members, and its counsel contributed
money that was intended to fund preparing or submitting the brief.
1
like DUI, that are rather common. This rationale is supported by the Supreme
Court’s decision in INS v. Aguirre-Aguirre, 526 U.S. 415 (1999), which interpreted
a different bar to withholding for “serious nonpolitical crimes” but did not decide
the issue before this Court. Interpreting the term “particularly serious crime” to
encompass only exceptionally grave offenses gives meaning to Congress’s use of
the word “particularly” to modify “serious crime” and thus avoids rendering this
word superfluous. Astoria Federal Savings & Loan Ass’n v. Solimno, 501 U.S.
104, 111 (1991). In addition, Congress’ definitions of a “serious criminal offense”
in 8 U.S.C. § 1101(h), which requires actual physical injury, and its definitions of
“serious violent crime” and “serious drug offense” in 18 U.S.C. §§
3559(c)(2)(F)(ii) and 924(e)(2)(A), respectively, both of which generally are
punishable by a lengthier sentence than DUI, further support this interpretation.
Amicus also urges the Court to create a presumption that an offense that
lacks a mental state is not a “particularly serious crime” within the meaning of §
1231(b)(3)(B)(ii). This presumption is supported by Supreme Court case law that
routinely holds that a lack of mens rea cannot correspond to harsh penalties. See,
e.g., Morissette v. U.S., 342 U.S. 246, 251-52 (1952); United States v. X-Citement
Video, Inc., 513 U.S. 64, 70-74 (1993); Staples v. United States, 511 U.S. 600, 616
(1994). Similarly, since deportation is considered a severe penalty in the
immigration context, see Padilla v. Kentucky, 559 U.S. 356, 365 (2010), the Court
2
cannot consider a crime that lacks a mens rea component to be a “particularly
serious crime” leading to deportation and the clear probability of persecution.
Finally, the Board’s decision conflicts with the plain language of 8 U.S.C. §
1231(b)(3)(B)(ii), among other reasons, because the Board failed to conduct a
separate, individualized dangerousness assessment before finding Petitioner
ineligible for withholding of removal. Traditional rules of statutory construction
support amicus’ position. Moreover, the position is not in conflict with this Court’s
prior decision in Ramirez-Ramos v. INS, 814 F.2d 1394, 1397 (9th Cir. 1987), as
the panel in that case reviewed a different statutory scheme and a different agency
interpretation, and intervening Supreme Court law applying the rule against
superfluity would allow the Court to revisit it.
II.
STATEMENT OF INTEREST
The National Immigration Project of the National Lawyers Guild (National
Immigration Project) has a direct interest in ensuring that noncitizens are not
unduly denied the opportunity to apply for withholding of removal under 8 U.S.C.
§ 1231(b)(3)(B). The National Immigration Project is a non-profit organization of
immigration attorneys, legal workers, grassroots advocates, and others working to
defend immigrants’ rights and to secure a fair administration of the immigration
and nationality laws. Through its litigation, advocacy, publications and continuing
legal education efforts, the National Immigration Project has been promoting these
3
objectives for more than forty years. It also trains the criminal defense bar
regarding the immigration consequences of criminal convictions and is the author
of Immigration Law and Crimes, published by Thompson-Reuters, which is the
leading treatise on the intersection of criminal and immigration law. For these
reasons, the National Immigration Project is committed to ensuring the accuracy
and predictability of the impact of a conviction on a noncitizen’s eligibility for
withholding of removal. For purposes of this brief, amicus accepts existing
precedent, which does not necessarily reflect amicus’ views regarding the scope
and applicability of the term “particularly serious crime.”
III.
ARGUMENT
THE BOARD ERRED IN CONCLUDING THAT PETITIONER’S 2000
CONVICTION WAS A PARTICULARLY SERIOUS CRIME AND, THUS,
ERRED IN DENYING HIM AN OPPORTUNITY TO APPLY FOR
WITHHOLDING OF REMOVAL.
A.
This Court Should Interpret the Term “Particularly Serious Crime” in
8 U.S.C. § 1231(b)(3)(B)(ii) to Encompass Only Exceptionally Grave
Offenses, Not a Common Offense Such as Driving under the Influence.
1.
The term “particularly serious crime” must be read to refer only
to offenses that are far more severe than even serious crimes.
The definition of a “particularly serious crime” encompasses a distinctively
more severe offense than that of a serious crime. This Court already has recognized
that a particularly serious crime “must be not just any crime, and not just any
serious crime – already a subset of all crimes – but one that is ‘particularly
4
serious.’” Alphonsus v. Holder, 705 F.3d 1031, 1048-49 (9th Cir. 2013) (emphasis
in the original); see also Delgado v. Holder, 648 F.3d 1095, 1109 (9th Cir. 2011)
(en banc) (Reinhardt, J., concurring) (stating that “a particularly serious crime must
be one that is more than serious - one that stands clearly apart from the broader
category of ‘serious crimes.’”) (emphasis in the original).
Moreover, the Supreme Court has agreed with this rationale. In INS v.
Aguirre-Aguirre, 526 U.S. 415 (1999), the Court reviewed the BIA’s test for
evaluating the “serious nonpolitical crime” exception to withholding of removal
under former 8 U.S.C. § 1253(h)(2)(B) (1995). The Court affirmed a BIA decision
employing the “atrocious” nature of the offense as a factor in making this
determination, noting that “[i]n common usage, the word ‘atrocious’ suggests a
deed more culpable and aggravated than a serious one.” Id. at 430 citing Webster’s
Third New International Dictionary. The Court concluded that the language of the
“serious nonpolitical crime” exemption does not require a crime to be an atrocious
act to fall within the exception. Id. Although the Court cited to the “particularly
serious crime” exception as supporting a proposition different from, but
sufficiently analogous to, the main proposition (cf.), the meaning of the modifier
“particularly” in this exception was not “squarely presented” and the Court did not
consider the arguments and statutory provisions (8 U.S.C. § 1101(h), and 18
5
U.S.C. §§ 3559(c)(2)(F)(ii) and 924(e)(2)(A)), raised below, and, thus, is not
binding on this Court. Brecht v. Abrahamson, 507 U.S. 619, 630-31 (1993).2
Other statutory provisions addressing “serious” crimes in both the
Immigration and Nationality Act and the United States Criminal Code should
inform this Court’s interpretation of the meaning of the term, a “particularly
serious crime.” For example, 8 U.S.C. § 1101(h) defines the phrase “serious
criminal offense” and gives an indication of the degree of seriousness associated
with a serious crime. In § 1101(h), Congress defines a “serious criminal offense”
for purposes of inadmissibility under 8 U.S.C. § 1182(a)(2)(E), as any felony,
crime of violence or, significantly here, “crime of reckless driving or of driving
while intoxicated or under the influence of alcohol or of prohibited substances if
such crime involves personal injury to another.” 8 U.S.C. § 1101(h)(1)-(3)
(emphasis added).
2
See also Webster v. Fall, 266 U.S. 507, 511 (1925) (“Questions which
merely lurk in the record, neither brought to the attention of the court nor ruled
upon, are not to be considered as having been so decided as to constitute
precedents”) (citations omitted).
In addition, as Judge Berzon pointed out in her dissent in the panel decision
in Delgado v. Holder, the Court in Aguirre-Aguirre concluded that “‘a serious
nonpolitical crime’ is not susceptible of rigid definition” and that, since most
“serious nonpolitical crimes” constitute aggravated felonies, “offenses less serious
than aggravated felonies cannot be ‘particularly serious crime[s].’” 563 F.3d 863,
882 (9th Cir. 2009) (Berzon, J., dissenting) (citations omitted), withdrawn as
precedent by Delgado v. Holder, 621 F.3d 957 (9th Cir. 2010).
6
Although Congress used the term “serious criminal offense” in § 1101(h)
and “particularly serious crime” in § 1231(b)(3)(B)(ii), the Court should read the
two terms in harmony. Ariz. Cattle Growers' Ass'n v. U.S. Fish and Wildlife, 273
F.3d 1229, 1241 (9th Cir. 2001) (“It is a fundamental canon of statutory
construction that the words of a statute must be read in their context and with a
view to their place in the overall statutory scheme. A court must therefore interpret
the statute as a symmetrical and coherent regulatory scheme and fit, if possible, all
parts into an harmonious whole.”) (internal citations and quotation marks omitted);
see also Coyt v. Holder, 593 F.3d 902, 907 (9th Cir. 2013) (finding that the only
way to “harmonize” the motion to reopen statute with the removal period statute
was to find that physical removal does not preclude filing a motion). Accordingly,
for reckless driving or DUI offenses to constitute a “particularly” “serious criminal
offense,” the crime must involve something more than personal injury to another
person.
Congress’ use of the modifier ‘“serious” in other related definitions of types
of crimes in the U.S. Code further demonstrates that a “particularly serious crime”
must involve a degree of gravity far more significant than a DUI. See Northcross v.
Board of Ed. of Memphis City Schools, 412 U.S. 427, 428 (1973) (using a
provision from the Civil Rights Act of 1964 to interpret the meaning of a similarly
worded provision in the Emergency School Aid Act of 1972). For example, in 18
7
U.S.C. § 3559(c)(2), Congress defines a “serious violent felony” as an offense
punishable by a maximum sentence of 10 years or more and “has as an element the
use, attempted use, or threatened use of physical force against the person of
another or that, by its nature, involves a substantial risk that physical force against
the person of another may be used in the course of committing the offense.” 18
U.S.C. § 3559(c)(2)(F)(ii). Similarly, a “serious drug offense” is defined as certain
federal and state drug offenses provided that they are punishable by a maximum
sentence of 10 years or more. 18 U.S.C. § 924(e)(2)(A). In contrast, “[m]ost DUI
convictions are not punishable by a term of imprisonment of more than one year
and thus fall outside the scope of the statute.” Begay v. United States, 553 U.S.
137, 158 (2008) (Alito, J., dissenting).3
In sum, this Court must interpret the term a “particularly serious crime” “so
as to avoid rendering superfluous” any statutory language. Astoria Federal Savings
& Loan Ass’n v. Solimno, 501 U.S. 104, 111 (1991). The Court should give
meaning to the word “particularly” by looking to Congress’ definition of a “serious
criminal offense” in 8 U.S.C. § 1101(h), which requires actual physical injury, and
its definitions of “serious violent crime” and “serious drug offense” in 18 U.S.C.
§§ 3559(c)(2)(F)(ii) and 924(e)(2)(A), respectively, both of which carry sentences
3
According to a leading treatise, “A reasonable interpretation would reserve
the term [particularly serious crime] for offenses carrying maximum terms of 20
years or more in prison.” Dan Kesselbrenner & Lory Rosenberg, Immigration Law
& Crimes § 9:17 (2013 ed.).
8
that are generally more lengthy than that of a DUI offense. Begay, 553 U.S. at
158. Compared with these other measures of seriousness, the BIA’s view that a
felony DUI can be a “particularly serious crime” is plainly inconsistent with
Congressional intent.
2.
That Congress adopted verbatim the term “particularly serious
crime” from the 1951 Refugee Convention and 1967 Protocol
further evidences its intent that the term encompasses only
exceptionally grave crimes.
As the Supreme Court already has recognized, Congress adopted the
Refugee Act of 1980 (“Refugee Act”)4 with the clear intent to “bring United States
refugee law into conformance with the 1967 United Nations Protocol Relating to
the Status of Refugees, 9 U.S.T. 6223, T.I.A.S. No. 6577, to which the United
States acceded in 1968.” INS v. Cardoza-Fonseca, 480 U.S. 421, 436-437 (1987).5
The term “particularly serious crime” first appeared in Article 33 of the United
Nations Convention Relating to the Status of Refugees, 189 U.N.T.S. 150 (July 28,
1951) (hereinafter 1951 Refugee Convention).
4
Pub. L. No. 96-212, 94 Stat. 102 (1980).
The Protocol Relating to the Status of Refugees, Jan. 31, 1967, art. I, 19
U.S.T. 6223, 606 U.N.T.S. 267(1967) (hereinafter 1967 Protocol) incorporates all
the provisions of the 1951 Refugee Convention and removes the temporal and
geographic restrictions set by the 1951 Convention. The 1951 Refugee Convention
only applied its provisions to individuals who became refugees as a “result of
events occurring before 1 January 1951” and gave states the option of limiting the
geographic scope of the Convention to “events occurring in Europe.” 1951
Refugee Convention, Ch. 1, Art. 1, A(2) & B(1).
5
9
At the time Congress adopted it verbatim in former 8 U.S.C § 1253(h)
(1980), the international law community already had interpreted it as limited to
exceptionally grave offenses. Specifically, Atle Grahl-Madsen, whose views on the
Convention have been cited by the Supreme Court and this Court, see CardozaFonseca, 480 U.S. at 421 and Alphonsus, 705 F.3d at 1037 n.6, and who has been
regarded as authoritative since he wrote the Commentary to the 1951 Refugee
Convention, explains that “the offence must normally be a capital crime (murder,
arson, rape, armed robbery, etc.).” Atle Grahl-Madsen, Commentary on the
Refugee Convention, Division of International Protection of the United Nations
High Commissioner for Refugees (1963), ¶9.
In addition, although it is not binding on this Court, the Handbook on
Procedures and Criteria for Determining Refugee Status under the 1951
Convention and the 1967 Protocol “provides significant guidance in construing the
Protocol, to which Congress sought to conform.” Cardoza-Fonseca, 480 U.S. at
439 n.22; see also Aguirre-Aguirre, 526 U.S. at 427. The Handbook explains that
“a ‘serious’ crime must be a capital crime or a very grave punishable act.”
UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status
under the 1951 Convention and the 1967 Protocol relating to the Status of
Refugees, ¶ 154 (1992).
10
Thus, at the time Congress adopted the term “particularly serious crime”
both the Commentary to the 1951 Refugee Convention and the Protocol, required a
particularly serious crime to be even more serious than capital crimes or grave
offenses. “[W]here, as here, Congress adopts a new law incorporating sections of a
prior law, Congress normally can be presumed to have had knowledge of the
interpretation given to the incorporated law, at least insofar as it affects the new
statute.” Lorillard v. Pons, 434 U.S. 575, 581 (1978); Goodyear Atomic
Corporation v. Miller, 486 U.S. 174, 184-85 (1988) (same).
Accordingly, it follows that, when it enacted the “particularly serious crime”
bar in former § 1253(h)(2)(B) (presently § 1231(b)(3)(B)(ii)) by using the exact
same language used in Article 33 of the Convention, Congress intended to adopt
the then established meaning of the term. See Molzof v. United States, 502 U.S.
301, 307 (1992) (“[W]here Congress borrows terms of art in which are
accumulated the legal tradition and meaning of centuries of practice, it presumably
knows and adopts the cluster of ideas that were attached to each borrowed word in
the body of learning from which it was taken and the meaning its use will convey
to the judicial mind unless otherwise instructed.”) (citation omitted).
Furthermore, the legislative history of the 1980 Refugee Act confirms
Congress’ intent to adopt the meaning prescribed to the term “particularly serious
crime” in the Convention. The House Conference Report explains that the
11
withholding provision has been “adopted . . . with the understanding that it is based
directly upon the language of the Protocol and it is intended that the provision be
construed consistently with the Protocol.” H.R Rep. No. 96-781, 20 (1979) (Conf.
Rep.).
In sum, Congress’ verbatim adoption of the 1951 Convention’s provision on
particularly serious crimes, the presumption that Congress knew that such crimes
were limited to something more than a “capital crime or a very grave punishable
act,” as confirmed by the legislative history of the 1980 Refugee Act, further
evidence that Congress intended the definition of a “particular serious crime” only
to apply to exceptionally grave offenses, of which common place DUI offenses are
not. Accord Leocal v. Ashcroft, 43 U.S. 1, 11 (2004) (“[a crime of violence]
suggests a category of violent, active crimes that cannot be said naturally to
include DUI offenses”).
3.
The rule of lenity supports limiting the definition of “particularly
serious crime” to exceptionally grave crimes.
Even if the Court were to find the meaning of “particularly serious crime”
ambiguous (notwithstanding the above-mentioned rules of statutory construction
and legislative history), the rule of lenity requires courts to construe “any lingering
ambiguities in deportation statutes in favor of the alien.” INS v. Cardoza-Fonseca,
480 U.S. 421, 449 (1987); see also Lara-Cazares v. Gonzales, 408 F.3d 1217,
1221 (9th Cir. 2005) (finding that gross vehicular manslaughter while intoxicated
12
is not a crime of violence, in part because the rule of lenity resolves any potential
ambiguity in 18 U.S.C. § 16 in favor of the petitioner). Here application of the rule
would require limiting particularly serious crimes to exceptionally grave offenses,
not common offenses, like DUI.
B.
This Court Should Adopt a Presumption that A Crime, Like DUI,
that Does Not Involve a Culpable Mental State is Not a Particularly
Serious Crime.
Although the Supreme Court treats the presence of a mental state as a
fundamental feature of a criminal statute, see, e.g., Morissette v. U.S., 342 U.S.
246, 250-52 (1952), this basic rule has exceptions, which permit strict liability
statutes to be lawful. In light of the fundamental role of scienter in criminal
culpability, however, amicus urges the Court to presume that an offense that lacks
a mental state is not a particularly serious crime.
As this Court already has held, unless a person has been convicted of an
aggravated felony (or felonies) and sentenced to five or more years, the Board
must conduct a “case-by-case analysis” when determining whether an offense is a
“particularly serious crime.” Blandino-Medina v. Holder, 712 F.3d 1338, 1345 (9th
Cir. 2013). In conducting that case-by-cases analysis, the agency may employ
reasonable presumptions and generic rules. Reno v. Flores, 507 U.S 292, 313
(1993) (explaining that the fact that an agency is required to use individualized
determinations “does not mean that [the agency] must forswear use of reasonable
13
presumptions and generic rules.”). The BIA itself has created similar presumptions
in the context of analyzing particularly serious crimes. See, e.g., Matter of Juarez,
19 I&N Dec. 664, 665 (BIA 1988) (“[e]xcept possibly under unusual
circumstances … we would not find a single conviction for a misdemeanor offense
to be a ‘particularly serious crime’”).
Here, this Court should adopt the presumption that an offense that lacks a
mental state is not a particularly serious crime.6 The Supreme Court long has
established the notion that mens rea is the touchstone of criminality and that this
notion “is as universal and persistent in mature systems of law as belief in freedom
of the human will and a consequent ability and duty of the normal individual to
choose between good and evil.” See Morissette, 342 U.S. at 251-52. Even a
conviction for the transportation and sale of child pornography was reversed by the
Supreme Court due to the absence of mens rea. See United States v. X-Citement
Video, Inc., 513 U.S. 64, 70-74 (1993).
6
In response to Petitioner’s argument that a DUI is not a particularly serious
crime because it lacks a mens rea component, the Board cited to Matter of G-S-S-,
26 I&N Dec. 339, 347 (BIA 2014), Anaya-Ortiz v. Holder, 594 F.3d 673, 680-81
(9th Cir. 2010); and Delgado v. Holder, 648 F.3d 1095 (9th Cir. 2011) (en banc).
Administrative Record at 6. These cases have no bearing on the argument
presented here. Matter of G-S-S-is inapposite; it held that the particularly serious
crime analysis does not consider mental health issues addressed as part of the
criminal proceeding. The Court in Anaya-Ortiz simply rejected petitioner’s
contention that the categorical and modified categorical approach applies, a
contention which amicus is not making here. The Board’s citation to Delgado v.
Holder for the general proposition that a particularly serious crime need not be an
aggravated felony does not address the mens rea argument at all.
14
In the immigration context, the Supreme Court has “long recognized that
deportation is a particularly severe ‘penalty.’” Padilla v. Kentucky, 559 U.S. 356,
365 (2010) (citation omitted). Additionally, the Supreme Court has linked the
gravity of the consequences for penalties on the availability of mens rea. See
Staples v. United States, 511 U.S. 600, 616 (1994) (“a penalty imposed under a
statute has been a significant consideration in determining whether the statute
should be construed as dispensing with mens rea.”). The Staples Court relies on
Blackstone’s Commentaries to further illustrate the point that “imposing severe
punishments for offenses that require no mens rea would seem incongruous.” Id. at
617 (citing 4 W. Blackstone, Commentaries at 21). Therefore, it would be equally
incongruous to deem an offense that lacks a mental state as a particularly serious
crime, where such deeming would impose the penalty of deportation to a place
where one faces a clear possibility of persecution.
This Court’s decisions affirming a BIA finding that a DUI was a particularly
serious crime do not preclude it from adopting this presumption. See, e.g., AnayaOrtiz v. Holder, 594 F. 3d 673 (9th Cir. 2010); Delgado v. Holder, 648 F.3d 1095
(9th Cir. 2011) (en banc). In these cases, the issue was not “squarely addressed.”
Brecht, 507 U.S. at 630-31; see also Webster, 266 U.S. at 511.
In sum, because of the historical and moral link between a culpable mental
state and criminality, which the Supreme Court routinely has affirmed, see, e.g.,
15
Morrisette, Staples, and X-Citement, supra, an offense that lacks a mens rea
component cannot be a “particularly serious crime.” Any other conclusion, would
banish people facing persecution based on an offense that fails the hallmark test of
criminality, and the Supreme Court’s rule that harsh penalties require mens rea.
Staples, 511 U.S. at 616.
C.
The Board’s Analysis is Wrong Because Congress Intended 8 U.S.C. §
1231(b)(3)(B)(ii) to Require an Independent Finding of Dangerousness,
and the Board Failed to Conduct a Separate Analysis.
1.
Contrary to Board precedent, the plain language of 8 U.S.C.
§ 1231(b)(3)(B)(ii) requires an independent finding of
dangerousness.
The Board’s decision, and the underlying precedent on which it necessarily
relies,7 is invalid because it conflicts with § 1231(b)(3)(B)(ii), which, under its
plain language, requires a separate finding of dangerousness before the agency
finds a person ineligible for withholding based on a particularly serious crime.
Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108
(1980) (“The starting point for interpreting a statute is the language of the statute
7
See Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007); Matter of Q-T-M-T-,
21 I&N Dec. 639, 646-47 (BIA 1996); Matter of K-, 20 I&N Dec. 418, 423-24
(BIA 1991); Matter of Carballe, 19 I&N Dec. 357, 360 (BIA 1986). Despite an
amicus brief from the United Nations High Commissioner for Refugees (UNHCR)
arguing that these precedents violate the 1967 Protocol Relating to the Status of
Refugees and the 1951 Convention Relating to the Status of Refugees, the en banc
Court in Delgado did not address those arguments because Petitioner did not adopt
or brief them. See Delgado v. Holder, 648 F.3d 1095, 1107 n.17 (9th Cir. 2011) (en
banc).
16
itself.”). The Board failed to undertake this analysis and make an independent
finding with respect to dangerousness.8
Under 8 U.S.C. § 1231(b)(3)(B)(ii), an immigration judge may grant
withholding of removal unless, inter alia, “the alien, having been convicted by a
final judgment of a particularly serious crime is a danger to the community of the
United States.” Emphasis added. Thus, the statute plainly requires an
individualized assessment of dangerousness. See N-A-M- v. Holder, 587 F.3d 1052,
1061 (10th Cir. 2009) (Henry, J., concurring) (“To accept the BIA’s recent
contention that the ‘danger to the community’ inquiry is subsumed within the
‘particularly serious’ offense inquiry seems to run afoul of the clear language of
the statute. The statute mentions both a ‘danger to the community’ inquiry and a
‘particularly serious’ offense inquiry; ignoring one of those inquiries does not give
full effect to the meaning to the statute.”); cf. Ahmetovic v. INS, 62 F.3d 48, 52 (2d
Cir. 1995) (“Arguably, the language ‘having been convicted by a final judgment of
a particularly serious crime, constitutes a danger to the community’ suggests that a
separate finding as to the alien’s ‘dangerousness’ is required.”). Under the plain
language of § 1231(b)(3)(B)(ii), not all persons convicted of particularly serious
crimes are dangers to the community; therefore, the BIA erred by finding
Petitioner ineligible for withholding absent an individualized determination as to
8
This Court’s 1987 decision in Ramirez-Ramos v. INS, 814 F.3d 1394 (9th
Cir. 1987) is discussed in § III.C.6, infra.
17
whether he, in fact, is dangerous.
2.
If having a particularly serious crime conviction and being a
danger to the community were synonymous, it would render
superfluous the phrase “is a danger to the community of the
United States.”
If Congress had intended that all particularly serious crimes were inherently
dangerous, its inclusion of the phrase “is a danger to the community of the United
States” would be redundant. United States v. Nordic Village, Inc., 503 U.S. 30, 36
(1992) (holding that “a statute must, if possible, be construed in such a fashion that
every word has some operative effect.”); see also Duncan v. Walker, 533 U.S. 167,
174-75 (2001); TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001). Cf. Ahmetovic, 62
F.3d at 52 (stating that, absent a separate dangerousness finding, “the clause
concerning ‘danger to the community’ might seem superfluous”) (citations
omitted).
3.
Congress is presumed to have amended 8 U.S.C. § 1231(b)(3)(B)
knowing that the BIA historically required an individualized
assessment of dangerousness in making particularly serious crime
determinations.
Through § 413(f) of Anti-Terrorism and Effective Death Penalty Act
(AEDPA)9 and § 305(a) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA),10 Congress amended § 1231(b)(3)(B), but it
did not remove the phrase “is a danger to the community of the United States.”
9
10
Pub. L. No. 104-132, § 413(f), 110 Stat. 1214 (April 24, 1996).
Pub. L. No. 104-208, § 305(a), 110 Stat. 3009 (Sept. 30, 1996).
18
Significantly, Congress is presumed to have amended this statute knowing that the
BIA had long interpreted particularly serious crimes to require an individualized
assessment of “whether the type and circumstances of the crime indicate that the
alien will be a danger to the community.” See Matter of Frentescu, 18 I&N Dec.
244, 247 (BIA 1982); Matter of S-S-, 22 I&N Dec. 458, 465-66 (BIA 1999)
(following Matter of Frentescu).
Congress’ knowledge that the BIA historically had required individualized
“particularly serious crime” assessments further evidences its intent to require an
individualized dangerousness assessment. Goodyear Atomic Corporation v. Miller,
486 U.S. 174, 184-85 (1988) (“[courts] presume that Congress is knowledgeable
about the existing law pertinent to the legislation it enacts.”); see also Monessen
Southwestern Ry. Co. v. Morgan, 486 U.S. 330, 337-338 (1988) (“we have
recognized that Congress’ failure to disturb a consistent judicial interpretation of a
statute may provide some indication that ‘Congress at least acquiesces in, and
apparently affirms, that [interpretation]’”) (citation omitted).
4.
Requiring a separate finding of dangerousness is the only way to
reconcile § 1231(b)(3)(B) with U.S. treaty obligations under
international law.
Compliance with the United States’ treaty obligations under international
law supports a reading of the statute that requires a separate finding of
dangerousness. See Negusie v. Holder, 555 U.S. 511, 520 (2009). Congress
19
adopted the language of “particularly serious crime” and “danger to the
community” in 8 U.S.C. § 1231(b)(3)(B) word for word from the 1951 Refugee
Convention. See 1967 Protocol, art. I (“undertaking to apply articles 2 to 34
inclusive of the [1951 Convention]”). The Protocol required signatory states to
conform to the obligations of the Convention Relating to the Status of Refugees,
July 28, 1951, 189 U.N.T.S. 150 (1951 Refugee Convention). Id. Importantly, it
obligated signatory states not to return a refugee to a country where he faces a
threat to his life or freedom on account of a protected ground unless the refugee,
“having been convicted by a final judgment of a particularly serious crime,
constitutes a danger to the community of that country.” See Protocol art. I and
1951 Refugee Convention art. 33(1) and (2). Under international law, this language
requires a separate finding of dangerousness.11 N-A-M-, 587 F.3d at 1062 (Henry,
J., concurring) (“[A] wealth of persuasive authority reveals that under both the
Convention and the Refugee Act implementing the Convention, the ‘decisive
factor is not the seriousness or categorization of the crime that the refugee has
committed, but, rather, whether the refugee, in light of the crime and conviction,
11
See, e.g., Pushpanathan v. Minister of Citizenship and Immigration, [1998]
1 S.C.R. 982, ¶ 12 (Canada); In re Baias & Minister for Immigration, Local
Government & Ethnic Affairs, (1996) 43 A.L.D. 284 (Australia); R v. Secretary of
State for Home Department, [2006] EWHC 3513 (Eng. Q.B. 2006) (United
Kingdom). The opinions of these states are relevant to U.S. law because, in matters
a treaty touches, “the opinions of . . . sister signatories [are] entitled to considerable
weight.” Air France v. Saks, 470 U.S. 392, 404 (1985).
20
poses a future danger to the community’”) (emphasis in the original) (citation
omitted).
Thus, consistent with Congress’ purpose in adopting the existing language in
§ 1231(b)(3)(B) and U.S. treaty obligations, the Court should interpret §
1231(b)(3)(B)(ii) to require a separate finding of dangerousness. Accord Negusie v.
Holder, 555 U.S. at 520; Cardoza-Fonseca, 480 U.S. at 436-37.
5.
Any lingering ambiguities must be resolved in Petitioner’s
favor.
As set forth in § III.A.3, the rule of lenity is the “long-standing principle of
construing any lingering ambiguities in deportation statutes in favor of the alien.”
Cardoza-Fonseca, 480 U.S. at 449; see also Lara-Cazares, 408 F.3d at 1221. Here,
application of the rule requires that the Court enforce Congress’ specific intent to
require a separate dangerousness assessment to determine whether Petitioner was
convicted of a particularly serious crime.
6.
Ramirez-Ramos is not applicable or, at the very least, is not
binding on this Court.
In 1987, in Ramirez-Ramos v. INS, this Court upheld a BIA decision
interpreting a prior version of the withholding statute and concluding that
individuals convicted of particularly serious crimes (PSC) necessarily constituted a
danger to the community. 814 F.2d 1394, 1397 (9th Cir. 1987). On “a close
reading” of the statute, the Court found the BIA’s interpretation “reasonable” but
21
did so without applying the rule against superfluity, the presumption that Congress
was aware of the BIA’s existing interpretation, the rule of lenity or any discussion
of international law. Id. at 1397. This Court is not bound by that decision for at
least three reasons.12
First, this case involves a different statutory scheme than the one the
Ramirez-Ramos Court considered in 1987. Compare 8 U.S.C. § 1253(h)(2)(1987)
(no designation of any conviction as per se particularly serious crimes) with 8
U.S.C. § 1231(b)(3)(B)(ii)(2014) (designating only an aggravated felony or
felonies with an aggregate of at least a 5-year sentence as per se particularly
serious crimes, and conferring discretion on the Attorney General to make
individualized determinations in all other cases). Through Immigration Act of
1990,13 Congress amended the withholding statute to categorically designate all
aggravated felonies as particularly serious crimes. In April 1996, Congress again
amended the withholding statute to confer the Attorney General with discretion to
waive this categorical bar if necessary “to ensure compliance with the 1967 United
Nations Protocol Relating to the Status of Refugees.”14 Then, in September 1996,
Congress added the current statutory language in § 1231(b)(3)(B). Specifically, in
12
Accord Delgado v. Holder, 648 F.3d 1095, 1107 n.17 (9th Cir. 2011) (en
banc) (“Delgado did not adopt UNHCR’s argument or brief his own argument for
overturning Ramirez-Ramos. We therefore do not address that issue.”).
13
Pub. L. No. 101-649, § 515, 104 Stat. 4978 (1990).
14
AEDPA § 413(f).
22
1996, Congress amended, but did not remove, the phrase “is a danger to the
community of the United States,” while specifically defining per se particularly
serious crimes by the length of the sentence imposed, and further authorizing the
agency, “notwithstanding the length of the sentence imposed,” to determine that
“an alien” (as opposed to all aliens) has been convicted of a particularly serious
crime.15 Accordingly, the statutory scheme presently before this Court is
significantly different from the scheme the Ramirez-Ramos Court considered.
Second, this case involves an entirely different agency interpretation. The
Ramirez-Ramos Court appears only to have been reviewing an unpublished BIA
decision, dated March 20, 1986. Ramirez-Ramos, 814 F.2d at 1396-97 (discussing
only the BIA opinion in petitioner’s case and alluding to “the BIA’s consistent
view”); see also Mahini v. INS, 779 F.2d 1419, 1420 (9th Cir. 1986) (“In
concluding that possession of heroin with intent to distribute the drug is a
‘particularly serious crime’ and that petitioner’s involvement in such activities
makes him a danger to the community, the BIA adhered to its own prior rulings,”
citing unpublished BIA decisions). The BIA issued its published decision in Matter
of Carballe, 19 I&N Dec. 357 (BIA 1986) on February 13, 1986, just over a month
before the Board issued the decision the Ramirez-Ramos Court reviewed. It is
possible, if not probable, that the BIA decision the Ramirez-Ramos Court held
15
IIRIRA § 305(a).
23
reasonable was an unpublished BIA decision.
Even if the Ramirez-Ramos Court had reviewed a BIA decision that cited to
Matter of Carballe, that still is a different agency interpretation than the one at
issue here. The Board in Matter of Carballe, 19 I&N Dec. 360, noting the lack of a
statutory definition for particularly serious crimes, relied on its own reading of the
relationship between the particularly serious crime clause and dangerousness
clause in former § 1253(h)(2)(B). The decision in Matter of Carballe also retained
the Board’s earlier multi-factor individualized test in Matter of Frentescu for
determining whether a crime is particularly serious (which incorporated a
dangerousness assessment).16 The Board’s precedent now (see Matter of N-A-M- ,
24 I&N Dec. 336 (BIA 2007)) completely reads out of the statute a separate
dangerousness inquiry and eliminates the dangerousness assessment previously in
the Board’s multi-factor test. 17
Stare decisis is not applicable unless the issue was “squarely addressed” in
the prior decision. Brecht v. Abrahamson, 507 U.S. 619, 630-31 (1993). The issue
presented here—whether § 1231(b)(3)(B)(ii) requires a separate dangerousness
16
Matter of Frentescu, 18 I&N Dec. 244, 247 (BIA 1982) (requiring
consideration of “the nature of the conviction, circumstances and underlying facts
of the conviction, the type of sentence imposed, and, most importantly, whether the
type and circumstances of the crime indicate that the alien will be a danger to the
community.”) (emphasis added).
17
Matter of Frentescu, 18 I&N Dec. at 247; Matter of S-S-, 22 I&N Dec. 458,
462, 464, 465-67 (BIA 1999) (following Matter of Frentescu).
24
assessment—was not “squarely addressed” in Ramirez-Ramos, nor could it have
been, since the statutory scheme and agency interpretations at issue are not the
same.
Finally, since the Court’s decision in Ramirez-Ramos, the Supreme Court
repeatedly has emphasized the importance of construing statutes to avoid
redundancies. See, e.g., Duncan, 533 U.S. at 174-75 (interpreting the phrase “State
post-conviction or other collateral review” as encompassing only state remedies,
reasoning that a “construction under which the word ‘State’ does nothing more
than further modify ‘post-conviction’ relegates ‘State’ to [an impermissibly]
insignificant role in the statutory provision.”); TRW Inc., 534 U.S. at 31 (avoiding
statutory interpretation that would mean that “more than half of that text would lie
dormant in all but the most unlikely situations.”). As stated above in § III.C.1,
reading the statute to include both a particularly serious crime and a dangerousness
inquiry would avoid rendering the dangerousness clause superfluous. Cf.
Ahmetovic, 62 F.3d at 52-53. Thus, in light of its subsequent authority, this Court
could find that the Supreme Court implicitly has overruled the Ramirez-Ramos
panel’s failure to give meaning to every word in the statute. See Miller v. Gammie,
335 F.3d 889, 892-93 (9th Cir. 2003) (en banc) (noting that the court may overrule
a prior decision by a three-judge panel if the decision “is clearly irreconcilable with
the reasoning or theory of intervening higher authority”).
25
If the Court believes Ramirez-Ramos is binding, in the alternative, amicus
suggests that the Court grant initial hearing en banc sua sponte because the issue of
whether a separate dangerousness assessment is required under 8 U.S.C. §
1231(b)(3)(B) is exceptionally important. See, e.g., Rojas v. AG of the United
States, 728 F.3d 203, 205 (3d Cir. 2013) (en banc) (noting court ordered en banc
rehearing sua sponte). See also Fed. R. App. P. 35 Advisory Committee’s Note
(“[This rule does not affect the power of a court of appeals to initiate in banc
hearings sua sponte.”).
IV.
CONCLUSION
The Court should grant the petition for review, vacate the Board’s decision,
and hold that Petitioner’s DUI conviction is not a particularly serious crime.
Respectfully submitted,
/s/ Trina Realmuto
Trina Realmuto
Khaled Alrabe, Legal Intern
National Immigration Project of the
National Lawyers Guild
14 Beacon Street, Suite 602
Boston, MA 02108
(617) 227-9727 ext. 8
[email protected]
Attorney for Amicus Curiae
Dated:
December 15, 2014
26
CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B)
and 29(d) because this brief contains 6,323 words, excluding the parts of this brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii). Additionally, this brief complies
with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style
requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a
proportionally spaced typeface using Microsoft Word 2010 in 14 point Times New
Roman font.
s/ Trina Realmuto
Trina Realmuto
National Immigration Project of the
National Lawyers Guild
14 Beacon Street, Suite 602
Boston, MA 02108
(617) 227-9727 ext. 8
[email protected]
Date: December 15, 2014
27
CERTIFICATE OF SERVICE FOR ELECTRONIC FILINGS
I hereby certify that on December 15, 2014, I electronically filed the foregoing:
BRIEF OF NATIONAL IMMIGRATION PROJECT OF THE NATIONAL AS
AMICUS CURAIE IN SUPPORT OF PETITIONER
with the United States Court of Appeals for the Ninth Circuit by using the
CM/ECF system. I certify that the following counsel of record is registered as an
ECF Filer and that they will be served by the CM/ECF system:
Erica Miles, Sarah L. Vuong and Stephen Elliott, counsel for Respondent.
s/ Trina Realmuto
Trina Realmuto
National Immigration Project of the
National Lawyers Guild
14 Beacon Street, Suite 602
Boston, MA 02108
(617) 227-9727 ext. 8
[email protected]
Dated:
December 15, 2014
28